A rare ruling; Alexander could become first sitting California DA to be disbarred

Del Norte County's top prosecutor Jon Alexander may become the first sitting district attorney in California to be disbarred.

A State Bar judge recommended Alexander's disbarment in a filling Thursday after finding him culpable of three acts of misconduct stemming from a conversation he had with a defendant without her attorney present.

The sanction is not only unprecedented in California, but a rare occurrence across the nation, said University of California Hastings College of Law professor David Levine.

Perhaps the most recent, infamous example of a district attorney being disbarred while holding office was Mike Nifong, who was serving in Durham County, N.C., when he was disbarred in 2007. Nifong was found guilty of misrepresentation, making false statements of material fact before a judge, and lying about withholding exculpatory evidence during the 2006 Duke Lacrosse Team case, in which three players were falsely accused of rape.

At the time, former Bronx, N.Y. public defender David Feige called Nifong's downfall a "freakish anomaly" in an opinion piece for Slate magazine.

Levine said there are several reasons why it's nearly unheard of for a sitting district attorney to be recommended for disbarment.

"Well, first of all, I would think if you are up at that level, you would not only hopefully be qualified, but also know all the rules," he said.

Levine said district attorneys -- especially those practicing in larger cities -- also don't tend to be involved in day-to-day litigation.

"Big city district attorneys pretty rarely step into court," he said. "They really don't have the exposure to litigation that would result in a transgression subject to State Bar review."

District attorneys are more likely to get in trouble for a criminal act, such as accepting a bribe, he said.

"It just doesn't seem to fit the MO (modus operandi)," he said. "Obviously, that's not to say it couldn't happen."

Disbarment of district attorneys may be unheard of in California, but the sanction happens each year with unelected attorneys. Between 2008 and 2011, 196 members of the State Bar were disbarred and 796 were suspended.

The State Bar website lists a current total of 242,780 members. Of those, 177,907 are active members and 52,125 are inactive members. Another 2,125 are judges, and 10,622 are considered not eligible to practice law. Members may be ineligible to practice law for a number of reasons: suspension, involuntary transfer to inactive status, or failure to pay mandatory State Bar fees.

Although the State Bar court recommended Alexander's disbarment, Levine said the state Supreme Court will have the last say in the matter. It is likely the court will refuse to hear the case, he said.

"It's discretionary, but by-and-large the Supreme Court refuses to hear appeals unless it thinks it could weigh in on a policy level," Levine said. "Given this individual's prior history -- when that is all put together with the State Bar court's judgment -- it doesn't sound like something where there is a wider policy issue at stake. It seems, more or less, like a direct application of rules."

There are two ways the state Supreme Court can impose Alexander's disbarment, Levine said.

"One way would be to take the case and say, 'Yes, the State Bar court was 100 percent right,'" he said. "The other way to do that would be to refuse to review the case. It would have the same effect of upholding the State Bar court's recommendation."

Once disbarred, Levine said an attorney could theoretically seek reinstatement, which is granted on a case-by-case basis. The individual could also try to work in another state.

"The problem there is that the person would have to disclose if they had been disbarred in another state," he said. "The chances that the other place would say, 'Oh, OK, we will accept you regardless.' That isn't very high."

Levine said the disbarment recommendation does raise the question of whether a district attorney, as an elected official, has to be a member of State Bar.

State Bar communication director Laura Ernde confirmed that district attorneys in California are required to be active members.

Although Alexander -- who had denied the charges -- said he is currently considering all options with his counsel, Levine said he will likely appeal.

"To take away your license, to take away your ability to hold office. ... He has, in effect, been dealt the death penalty," Levine said. "You would think if he has gone this far he would take it to the next level."